F. Disclosure in Summary Proceedings Disclosure in Summary Proceedings

• Jurisdiction: New York

F. Disclosure in Summary Proceedings

Because a summary proceeding is, by definition, an expedited adjudication, disclosure is permitted only by leave of court,¹⁵⁴⁹ either by stipulation of the parties or by motion¹⁵⁵⁰ in which the movant demonstrates that the information sought is germane to the proceeding, that the movant has ample need for it, and that the request is carefully tailored to clarify the disputed facts.¹⁵⁵¹ In New York University v. Farkas,¹⁵⁵² the court articulated a six-pronged test to determine whether a party seeking discovery has made the requisite showing of ample need. The six prongs of the Farkas test are:

(1) whether, in the first instance, the party seeking discovery has asserted facts sufficient to establish a cause of action or defense. Thus, disclosure should not be permitted for a fishing expedition to obtain facts necessary to state a cause of action or defense;

(2) whether a need to determine information directly relates to the cause of action;

(3) whether the requested disclosure is carefully tailored and likely to clarify the disputed facts;

(4) whether prejudice will result from granting a motion for disclosure;

(5) whether any prejudice can be diminished or alleviated by a court order fashioned for this purpose, for example, conditioning a grant of a motion for disclosure upon the payment of use and occupancy or ordering that all disclosure be done quickly;

(6) whether the court can structure disclosure so that pro se tenants, in particular, will not be adversely affected by a landlord's disclosure requests. ¹⁵⁵³

But a party seeking disclosure is not required to demonstrate all the above factors to establish ample need, nor is the above list comprehensive of factors the court may consider.¹⁵⁵⁴

The showing of ample need must still be made by way of an affidavit from someone with personal knowledge.¹⁵⁵⁵ Even where disclosure is permitted in a summary proceeding, it is far more limited in nature and more carefully supervised than it would be in a plenary civil action. ¹⁵⁵⁶

Disclosure motions, in the form of examinations before trial and document production, are routinely granted to landlords in nonprimary-residence holdover proceedings;¹⁵⁵⁷ to landlords when the tenant asserts a succession defense; to tenants in owner's-use holdover proceedings;¹⁵⁵⁸ and, in other cases, to the landlord or the tenant when the determinative facts are in one party's exclusive control.

Instead of a motion, the party from whom disclosure is sought may consent by stipulation to disclosure. Given the likelihood that disclosure will be granted in nonprimary residence cases and in owner's-use cases, the party from whom disclosure is sought in these cases will often consent to disclosure. A party obtaining disclosure by stipulation is well advised to have the court so-order the stipulation so that the penalties for failure to comply with court-ordered disclosure, including those provided for in...